IntroductionThis project offers an account
of the struggle for openness and freedom of information in the
European Union.

The use of the terms "openness" and "transparency"
is sometimes confusing. "Transparency" is used, in
the EU context, to mean the "transparency" of the decision-making
process - that it should be clear who makes decisions, when and
where. Whereas "openness" describes the citizen's right
of access to documents.

The other notion that the provision of "information"
is the most important factor. It is argued that only a few hundred
individuals across the EU are interested in the detail and small
print of documents, whereas millions can access information on
the internet. The "information" referred to is a combination
of factual material (for example, the text of a Regulation or
decision) and the presentation of the Commission's, or the Council's,
point of view.

There is, however, an essential and indispensable link between
the right of access to documents and the provision of information
by the institutions, and that link is a simple one. Only if the
right of freedom of information is finally established, and defended,
is there any guarantee that the "information" made
available will not be partial, limited, or tailored to the institutions'
perspective. Much information is not on the internet
but it is available through documents which tell the story of
policy development and not just its end product.

Is "openness" inevitable?

There are several theories about "openness" and
the Council of Ministers (EU governments). Some would argue the
gradualist (and paternalistic) approach. In the early days (from
the Treaty of Rome in 1976) there was a pervasive "diplomatic"
approach where almost every document was a state secret. The
Maastricht Treaty (1993) and now the Amsterdam Treaty (June 1997)
have inevitably undermined this approach in favour of more transparent
proceedings. The expansion of the EU remit to cover justice and
home affairs issues (1993) and incremental increases in the powers
of the European Parliament (1993 and 1997) make more "transparent"
decision-making processes and ("openness") access to
documents inevitable. This argument suggests that at each stage
the balance between secrecy and openness was just about right.

But has change happened because of the "enlightened"
views of EU governments who realise that the legitimacy of their
actions depend on openness and transparency? That part of the
"democratic deficit" is of their own making through
seeking for too long to cling to old ways of decision-making?
Certainly the Council of Ministers has been extremely reluctant
to even acknowledge changes in their practice on access to documents
have come about through challenges from outsiders.(1)

The reality of the struggle for openness since 1993 shows
that change does not happen without a combination of factors.
A handful of EU governments, acting through the Council of Ministers,
have played an important role. This group has been led by Denmark
and Sweden, sometimes backed by the Netherlands, Finland and
the UK. The forces of secrecy have been led by France backed
by Spain and Germany. On occasion nine EU member states have
publicly lined up on the side of secrecy - France, Spain, Belgium,
Luxembourg, Germany, Portugal, Italy, Austria and Greece - as
in a notable vote attacking a Statewatch request for documents
in 1996.

But without external challenges from civil society (journalists,
researchers and voluntary groups), backed by liberal judges and
a diligent Ombudsman, the 1993 Decision on public access to Council
documents would have been ineffectual and little used. The 1993
Decision became meaningful precisely because the Council's instinct
for secrecy was challenged in the court and via the European
Ombudsman. These challenges, in turn, created the space for the
EU member states siding with openness to back change. The new
Regulation, adopted in 2001, presents new obstacles to access
and all the evidence is that civil society has to continue it
struggles.

Why do we need "openness"?

Open, transparent and accountable decision-making is the essence
of any democratic system. Secrecy is its enemy and produces distrust,
cynicism and apathy among citizens and closed minds among policy
makers.

The policy areas which pose the biggest threat to civil liberties
and the human rights of citizens, both for EU citizens and those
who fleeing poverty and repression seek to enter as refugees
and asylum seekers, have been developed in the greatest secrecy.
The "Trevi" acquis was bequeathed (and incorporated
into) to the Maastricht era, the justice and home affairs acquis
communautaire developed between 1993-1999 has been passed
on, together with the Schengen acquis (developed without
little or no accountability), to the post-Amsterdam era.
(2) In the field of justice and home affairs (immigration
and asylum, customs cooperation, legal cooperation and police
cooperation - including surveillance and public order) the Amsterdam
era has inherited a European state, comprised of definable agencies
and practices, which has been developed largely in secret with
minimal democratic input.(3)

Now that all the essential elements are in place the European
Parliament has been given some say over new measures.
No procedures however are in place to scrutinise the implementation
of these measures and to monitor the practices of these agencies.

The need for the full establishment of freedom of information
in the EU has never been greater but it is not an end in itself,
it is a means to an end. It is a prerequisite of a democratic
society allowing people to inform themselves in order to effectively
defend fundamental rights and liberties in the ongoing "war
on freedom and democracy".

Tony Bunyan,
July 2002

Footnotes

1. See their reaction in the John Carvel
case (Chapter 2) and the Statewatch cases (Chapter 3).

2. The term acquis is used in
the EU to describe an agreed body of measures, decisions and
practices which all EU states are expected to adhere to.

3. see, "Towards an authoritarian
European state", T. Bunyan, Race and Class, vol
32 no 3, 1991. There I argued, and still argue, that we are witnessing
the emergence of a European state - in particular of the coercive,
"hard", state functions and practices covering internal
security.